Opinion
Case No. 2:01-CV-059.
April 28, 2004
OPINION AND ORDER
This matter is before the Court on the Plaintiffs' Motion for Reconsideration of Order Vacating Default Judgment or, in the Alternative, for Leave to File Interlocutory Appeal (Doc. #64). For the reasons that follow, the Plaintiffs' motion is denied in its entirety.
I.
On October 20, 2003, this Court issued an Opinion and Order finding that Defendant Victoria Zdrok was not properly served with process and that the Default Judgment previously entered against her was void. The Court issued its Order after holding an Evidentiary Hearing on the service of process issue. The Plaintiffs now move the Court to reconsider its conclusion.
The Plaintiffs argue that reconsideration is warranted because Defendant Zdrok's testimony cannot overcome Plaintiff's prima facie evidence of service of process. According to the Plaintiffs, Zdrok's testimony that she was not personally served "is insufficient to refute the validity of a sworn return of service." ( Motion for Reconsideration at 3). Plaintiff argues that Zdrok's testimony was uncorroborated and therefore fails as a matter of law. Plaintiffs contend that Zdrok could have offered employment records or a daily calendar to support her testimony that she was at work when service was allegedly made. Plaintiffs also argue that service could have been made on Zdrok's mother, who according to the testimony of Zdrok's fiancé, was then residing with the couple at Zdrok's home.
The Court considered each of these issues in its previous Opinion and Order. The Court found Zdrok's testimony corroborated by that of her fiancé, John Wilson, who was at home on the date and time in question. Wilson testified that no one attempted service of summons and complaint. The Court also found that, even if Zdrok's mother was residing at the home, given Zdrok's description of her mother as a short woman with dark hair, she could not be confused with Zdrok, who is tall with blonde hair. In addition, the Court found the lack of employment records or calendar to support Zdrok's testimony was of no moment.
The return of service states that Zdrok herself was served. The box on the return indicating service on a person of suitable age and discretion, is not marked.
As the Court held earlier, the party attacking a default judgment on insufficiency of process grounds bears the burden of showing a lack of service. Opinion and Order at 3. To satisfy the burden, the Defendant "cannot simply deny receipt of the summons and complaint; rather, the Defendant must make specific objections and `must point out in what manner the Plaintiff has failed to satisfy the service provision utilized.'" Id., quoting In the Matter of Brackett v. Brackett, 243 B.R. 910, 914 (N.D. Ga. 2000). The Court held that Defendant satisfied this burden. The Court further observed that Plaintiffs failed to come forward with any evidence to refute the testimony of Defendant Zdrok and her fiancé.
The Court notes Plaintiffs' argument that they attempted but were unable to secure the presence of Mr. Senatore, the process server, at the evidentiary hearing. In connection with the Motion for Reconsideration, Plaintiffs present an affidavit of Mr. Senatore in which he states that he was "unable and unavailable to attend [the] hearing due to a physical disability following surgery that prevents [him] from traveling." ( Affidavit of Frederick Senatore at ¶ 4). According to Mr. Senatore, had he testified at the hearing, he would have affirmed the affidavit that was presented by Plaintiffs in connection with the Defendant's Motion to set aside the Default Judgment. In this earlier affidavit, Senatore avers that he is "simply unable to recall the specific details concerning my service of process on Defendant in this case." ( Affidavit of Frederick Senatore, October 10, 2002, at ¶ 7). In the Court's view, this testimony would have been insufficient to overcome the Defendant's specific objections to the presumption of service of process.
In the Court's view, the Plaintiffs' present Motion for Reconsideration seeks to re-litigate matters which have already been decided. This Court set forth the legal standard for setting aside a Default Judgment based on insufficiency of service of process in its earlier Opinion and Order. The law has not changed. The Court found that the Defendant and her fiancé' provided credible testimony to overcome the presumption of service of process and therefore, the Default Judgment was set aside. The fact that Plaintiffs are not happy with the Court's ruling is not a basis for reconsidering the same.
As the Sixth Circuit holds, a Motion for Reconsideration "should not be used to relitigate issues previously considered." American Marietta Corporation v. Essroc Cement Corporation, No. 01-3752, 2003 WL 463493 at *3 (6th Cir. Feb. 19, 2003). Rather, reconsideration is warranted only if the moving party demonstrates (1) a clear error of law; (2) newly discovered evidence that was not previously available to the parties, or (3) an intervening change in controlling law. GenCorp., Inc. Am. Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999). Plaintiffs fail to satisfy any of the foregoing elements and, as a consequence, the Plaintiffs' motion for reconsideration is denied.
II.
In the alternative, Plaintiffs request that the Court certify its Order for interlocutory appeal, under 28 U.S.C. § 1292(b). This statute provides:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. . . .28 U.S.C. § 1292(b). "Exceptional circumstances must exist or irreparable harm must seem imminent before leave is granted for an interlocutory appeal." West Tennessee Chapter of Associated Builders and Contractors, Inc. v. City of Memphis, 138 F.Supp.2d 1015, 1018 (W.D. Tenn. 2000). Thus, the statute is to be applied sparingly. Id.
The Court concludes that an interlocutory appeal is not warranted in this case. The Court finds no basis from which to conclude that there could be a substantial ground for difference of opinion on the service of process issue. Thus, the Plaintiffs' alternative request is denied.